Justice Thomas, sole justice supporting death sentence

By MARK SHERMAN Associated Press

WASHINGTON – The Supreme Court upended the conviction and death sentence of a black Georgia man Monday because prosecutors violated the Constitution by excluding African-Americans from the all-white jury that determined his fate.

The 7-1 ruling in favor of death row inmate Timothy Tyrone Foster came in a case in which defense lawyers obtained strikingly frank notes from prosecutors detailing efforts to keep African-Americans off of Foster’s jury. The decision broke no new ground in efforts to fight racial discrimination in jury selection, but underscored the importance of a 30 year-old high court ruling that took aim at the exclusion of minorities from juries.

Chief Justice John Roberts wrote for the court that “prosecutors were motivated in substantial part by race” when they struck African Americans from the jury pool, focusing on the decision to exclude two black jurors.

Two such jury strikes “on the basis of race are two more than the Constitution allows,” Roberts wrote.

The high court returned Foster’s case to state court, but Stephen Bright, Foster’s Atlanta-based lawyer, said “there is no doubt” that the decision Monday means Foster is entitled to a new trial, 29 years after he was sentenced to death for killing a white woman.

The decision did nothing, however, to limit peremptory strikes, lawyers’ ability to reject potential jurors without offering any reason. The late Thurgood Marshall, the first African American to serve on the Supreme Court, once said that racial discrimination would persist in jury selection unless peremptory strikes were curtailed.

Justice Clarence Thomas dissented, saying he would have respected the decisions of state judges who sided with prosecutors and rejected Foster’s claims. Thomas, a Georgia native, recounted Foster’s confession to having murdered a 79-year-old retired schoolteacher “after having sexually assaulted her with a bottle of salad dressing.”

When the case was argued in November, the justices did little to hide their distaste for the tactics employed by prosecutors in north Georgia. Justice Elena Kagan said the case seemed as clear a violation “as a court is ever going to see.” Still, Georgia courts had consistently rejected Foster’s claims of discrimination, even after his lawyers obtained prosecutors’ notes that revealed their focus on the black people in the jury pool. In one example, a handwritten note headed

“Definite No’s” listed six people, of whom five were the remaining black prospective jurors. The sixth person on the list was a white woman who made clear she would never impose the death penalty, according to Bright. And yet even that woman ranked behind the black jurors, he said.

The court was not persuaded by the state’s argument that the notes focused on black people in the jury pool because prosecutors were preparing to defend against discrimination claims.

The Supreme Court’s ruling about race discrimination in jury selection was about a year old when Foster’s case went to trial, the state said. The 1986 decision in Batson v. Kentucky set up a system by which trial judges could evaluate claims of discrimination and the explanations by prosecutors that their actions were not based on race.

“This argument falls flat,” Roberts wrote. He noted that the record shows “a concerted effort to keep black prospective jurors off the jury.”

Georgia Attorney General Sam Olens declined to comment on the decision.

Foster’s trial lawyers did not so much contest his guilt as try to explain it as a product of a troubled childhood, drug abuse and mental illness. They also raised objections about the exclusion of African Americans from the jury. On that point, the judge accepted prosecutor Stephen Lanier’s explanations that factors other than race drove his decisions. The jury convicted Foster and sentenced him to death.

The jury issue was revived 19 years later, in 2006, when the state turned over the prosecution’s notes in response to a request under Georgia’s Open Records Act.

The name of each potential black juror was highlighted on four different copies of the jury list and the word “black” was circled next to the race question on questionnaires for the black prospective jurors. Three of the prospective black jurors were identified in notes as “B(hash)1,” “B(hash)2,” and “B(hash)3.”

An investigator working for the prosecutors also ranked the black prospective jurors against each other in case “it comes down to having to pick one of the black jurors.”

Roberts noted that Lanier’s reasons for excusing people from the jury changed over time. The chief justice also focused on an apparent different standard for prospective white and black jurors. One African American man was excused in part because his wife worked at a local hospital, Roberts said. “But Lanier expressed no such concerns about white juror Blackmon, who had worked at the same hospital” and served on the jury, Roberts said.

Thomas objected to his colleagues’ late intervention. “Foster’s new evidence does not justify this court’s reassessment of who was telling the truth nearly three decades removed from voir dire,” Thomas wrote, using the term for jury selection.

Foster’s case is the rare instance in which the prosecutors’ files contained clear evidence of racial discrimination, Bright said. Still, he said, “Courts should know it might be there and be more vigilant in finding it.” The case is Foster v. Chatman, 14-8349.